Senate Democrats Will Filibuster Gorsuch...Maybe

Demos President Heather McGhee on Neil Gorsuch and his corporatist policies (cued partway into the presentation)

by Gaius Publius

There a long litany of reasons why Neil Gorsuch is a terrible choice for the Supreme Court, including and especially his strong "corporatist" leanings. Demos President Heather McGhee speaks about that in the brief video above. Needless to say, continuing the Roberts Court pattern of enabling corporate rule over rule by the people will have dangerous consequences for those so ruled, as well as for the Republic, when that rule is overthrown. Make no mistake — when corporate rule finally go too far, takes one step too many, it will be overthrown. When that occurs, the moment will be neither pretty nor comfortable.

Another in that litany of reasons, of course, is to deny to the Republicans the fruits of a stolen seat.

Yet a third has to do with his relationship with religion, as shown in the Hobby Lobby case. As the invaluable Dahlia Lithwick points out, "Our current religious-liberty jurisprudence, as laid out by the Supreme Court in its Hobby Lobby opinion, is extremely deferential toward religious believers. What believers assert about their faith must not be questioned or even assessed. Religious dissenters who seek to be exempted from neutral and generally applicable laws are given the benefit of the doubt, even when others are harmed. Sometimes those harms are not even taken into account." She adds, "Gorsuch agrees with all of this and then some. His record reflects a pattern of systematically privileging the rights of religious believers over those of religious minorities and nonbelievers."

And a fourth, related to the first, is that, as Lithwick has elsewhere pointed out [corrected: it was Eric Segall] that the Supreme Court, unlike the other two branches of government, has no compelling force to guarantee its legitimacy — no army, in other words; no police force. Its legitimacy rests on agreement only.

Consider: You may think Executive Branch decisions are illegitimate, but its officers can nevertheless have you arrested or worse. The Executive Branch, in other words, can force, can compel, your submission. The same with Congress, should it decide someday to advance its prerogatives. Congress can pass laws and, if it wishes, compel the Executive Branch to enforce them. The Supreme Court, in contrast, has no way to compel any citizen to obey its decrees.

When a court, any court, which by definition should be impartial, is widely considered illegitimate — captured and corrupted by partisan or minority forces — the community governed by that court enters "you can submit or rebel" territory. This is Segall's warning. In my view we are very close to that time when the Supreme Court, in the eyes of most of its citizens, has shed the last of its legitimacy. The process started in earnest with the partisan theft, by the Court, of the 2000 presidential election. The shredding of its cloak of legitimacy continues to this day.

This suggest a larger question, of course — what happens when a government loses the "consent of the governed"? — but that's a subject for another day. Nevertheless, with all that's going on around us, can that consideration, something much to be feared by anyone hoping to live in a just and orderly society, ever be far from our minds?

A "Deal" on Gorsuch?

But I want here to look at one political aspect of the Gorsuch nomination — the fact that the Democrats, one of the abused parties in this saga, seem to have offered Republicans, or are considering offering to them, a "deal" that would allow Gorsuch to be confirmed. Then, when the deal became known, they appear to have reversed themselves. But have they?

First, the deal (my emphasis):

Democrats weigh deal to let Gorsuch through

Lawmakers are mulling an offer to Republicans that would keep the filibuster intact for the next Supreme Court nominee.

A group of Senate Democrats is beginning to explore trying to extract concessions from Republicans in return for allowing Supreme Court nominee Neil Gorsuch to be confirmed, according to multiple sources familiar with the matter. ... The deal Democrats would be most likely to pursue, the sources said, would be to allow confirmation of Gorsuch in exchange for a commitment from Republicans not to kill the filibuster for a subsequent vacancy during President Donald Trump’s term.

This report, like many such reports from places like Politico, also contains the "cover story," the "reasonable explanation" (in sales terms) that the guilty parties would like you to believe are their motives. "The lawmakers worry that Gorsuch could be confirmed whether Democrats try to block him or not — and Democrats would be left with nothing to show for it."

The real reason corporatist Democrats — a group that includes Chuck Schumer, remember, if it is not led by him — want Gorsuch confirmed is that their corporate paymasters (sorry, campaign contributors) want Democratic Senators to help confirm him, and may shut off the flow of money if they don't.

Who are the Democrats who want to cut a deal to get Gorsuch confirmed? The article wouldn't name them, but does say, "The current talks are limited to about a half-dozen Democratic lawmakers." While the article says the senators looking to cut a deal on Gorsuch requested anonymity, it adds, "Some liberals are aiming to block Gorsuch, while others are worried about the electoral prospects for 10 senators up for reelection next year in states won by Trump if they’re seen as obstructing the president’s court pick" (my emphasis).

A look at Democrats up for reelection in 2018 includes these, culled from a list of those whose votes for Trump nominees are among the worst:

• Cantwell
• Cardin
• Carper
• Casey
• Donnelly
• Heinrich
• Heitkamp
• Kaine
• King (Independent)
• Klobuchar
• Manchin
• McCaskill
• Menendez
• Nelson
• Stabenow
• Tester

All of these senators will face the voters in 2018. Care to pick a "half dozen" from that list who may have been on Politico's "anonymous" list? Joe Manchin is named in the Politico piece as being especially concerned about preserving the filibuster, as is Chris Coons, who is not up for reelection until 2020.

Remember, it will take just eight Democrats to break a filibuster and confirm Neil Gorsuch.

Reaction to News of the "Deal"

After a strong negative reaction to news of this "deal," Senate Minority Leader Chuck Schumer announced that the Democrats would filibuster the nomination. The Washington Post headline announced:

"Schumer: Democrats will filibuster Gorsuch nomination"

The implication is that all Democratic senators, or a sufficient number of them, would indeed block this nomination, thus clearing the Party as a whole of the suspicion of complicity. But the Post article itself was more circumspect: "Senate Minority Leader Charles E. Schumer (D-N.Y.) said he will vote no on President Trump’s nominee and asked other Democrats to join him in blocking an up-or-down vote on Gorsuch" (my emphasis). Note — he "asked" other Democrats to join him.

The Post adds to the uncertainty, noting:

The Democrats’ liberal base has been pressuring senators to block Trump’s nominees across the government. But Schumer stopped short of saying that his entire Democratic caucus would join him in opposition to Gorsuch, leaving political space for some Democrats to find ways to work with Republicans.

Will the Gorsuch nomination be filibustered, or "filibustered"? Democrats have the numbers to block this, and Schumer is strong enough to whip his caucus into line — if he wants to. Will we watch the Schumer-led Democratic Party block Neil Gorsuch from a lifetime seat on the Court, or just pretend to?

Bottom Line — Who Will Step Up for Gorsuch So Others Don't Have To?

Privately, I think there are easily more than eight corporatists in the Democratic Senate caucus who would eagerly put paid to their obligations to the very very wealthy, who want this nomination to succeed very very much. If the Gorsuch vote were secret — or entirely unnoticed, as most Monsanto Senate votes are — you'd see them all vote yes without a backward glance. Even "liberal lion" Al Franken votes with Monsanto when the spotlights are off. Same with MSNBC darling Amy Klobuchar, who is on the list above, by the way.

The list of possible pro-Gorsuch senators includes the obvious names above — Manchin, Heitkamp to name just two — but also includes these so-called "undecided" senators:

• Kaine (Clinton's veep pick)
• Klobuchar (her again)
• Warner (a Schumer ally in Senate leadership)
• Coons
• Hassan
• Donnelly
• Nelson
• Tester

The chips are down and most of the cards have been played. The Democrats have heard from their other base — people who vote — and have announced a filibuster. It's in their power to win, during this round anyway. What will they do?

This test is a very big deal. It will tell voters once again who the Democratic Party, in the aggregate, represents. Will eight Democrats (including the Democratic-caucusing Angus King) cross the line and vote with Republicans so others don't have to? Or will Senate Democrats realize that the path to irrelevance in the Age of Trump, well paid though it be, leads through this door, and stand up to the money that funds them?

I can't wait to find out what happens. Either way, it will be consequential (meaning, have consequences).

GP